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Decision No. 12,757

Appeal of PATRICIA WILKERSON, on behalf of her children Charles Reed and Kimesha Reed, from action of the Board of Education of the Harborfields Central School District regarding admission to school.

Decision No. 12,757

(July 23, 1992)

George A. Calabrese, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow her two children, Charles and Kimesha, to attend the schools of the district. The appeal must be dismissed.

For a number of years prior to the 1991-92 school year, petitioner resided with her mother in the Harborfields Central School District. Her children, Charles and Kimesha, attended schools in that district. In August 1991 petitioner signed a lease for an apartment located in a neighboring district. Upon learning that petitioner had moved, respondent investigated the matter. As a result of that investigation and subsequent to conferences between district officials and petitioner, respondent notified petitioners that Charles and Kimesha would not be able to attend the schools of the district after November 27, 1991. This appeal ensued.

Petitioner maintains that Charles and Kimesha are entitled to attend school in the Harborfields district because they stay with petitioner's mother, who resides within the district. Petitioner further maintains that when she signed the lease for her apartment, she was unaware that it was not in the Harborfields district. Moreover, she contends that she intends to move back into the district. Based on these allegations and her claim that her children will be harmed if they are not allowed to remain in respondent's schools, petitioner maintains that her children should be permitted to attend school in the district.

Education Law '3202(1) provides in part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of the statute is to limit the obligation of school districts to provide tuition-free education to only those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

A child's residence is presumed to be that of his or her parents or legal guardian (Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado, 24 id. 279). To establish the legal residence of a child whose natural parent or parents live outside the district, it must be demonstrated that there has been a total, and presumably permanent, transfer of custody, and control to someone residing within the district (Matter of Van-Curran and Knop, 18 Ed Dept Rep 523; Matter of Catlin v. Sobol, et al., 77 NY2d 552). While it is not necessary to establish parental custody and control through a formal guardianship in Surrogate's Court (Appeal of Tunstall, 27 id. 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Pernell, 30 Ed Dept Rep 380).

The record before me does not support petitioner's contention that Charles and Kimesha reside with petitioner's mother within the Harborfields district. Petitioner's mother takes care of the children when they are not in school and petitioner is working. This arrangement alone, however, is not sufficient to support petitioner's contention that the children actually reside with petitioner's mother in the Harborfields district. Moreover, petitioner's contention that she was unaware that her new residence was not within the Harborfields district or that the change in schools will harm her children in some unspecified manner is no basis for permitting her children to attend the schools of a district in which they do not reside.

The fact that petitioner intends to return to the Harborfields district is also unavailing. Residence for purposes of Education Law '3202 may be established in part based upon bodily presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Ed., 64 M2d 60). In addition, it is necessary to consider an individual's intent to determine his or her actual residence (Matter of Manning, 24 Ed Dept Rep 33). Petitioner's intention to return to the Harborfields district is not entirely clear from the record before me. Even if that intention were shown, however, petitioner has failed to establish that she and her children are actually physically residing in respondent's district. (See Matter of Whiteman, 24 Ed Dept Rep 337).

Based upon the record, I conclude that respondent's determination, that petitioner's children Charles and Kimesha may not attend its schools, was not arbitrary, capricious or unreasonable and should not be set aside.

I have reviewed petitioner's other contentions and find them without merit.